Wednesday, October 26, 2016

What is an Order of Protection?

An order of protection is a legal remedy for victims of domestic violence.  Effectively, it is a civil restraining order issued by a judge that prevents the "abuser" from committing acts of violence against a person, minor child, elderly, or a disabled person.    Additionally, the abuser may be prevented from gaining entry in person's home, or coming to the victim's place of work

Domestic abuse is commonly defined as any of the following:

1.  Physical abuse - physical force, sexual abuse, behavior that creates immediate risk of physical harm ; OR 
2.  Harassment - multiple acts of causing disturbance, repeated unwanted contact, threats of abuse, or keeping another person under surveillance, and improperly concealing the minor child from the other parent : OR
3.  Willful deprivation - denying  minor child, elderly or a disabled person medicine or food - effectively putting that person in harm's way.

Who, and in what situations can a person obtain an Order for Protection?

A Petition for Order of Protection may be filed only a person who has been abused by a family or household member, OR by ANY person on behalf of a minor child,  adult who has been abused by family, or by disabled person.  
Key here is that ANY person can file so long as it is on behalf of a abused child or adult.  For an example, a neighbor can bring forward a petition for order of protection on behalf of the neighboring child if that child has been abused by his or her parents.  More commonly, we see spouses filing petitions for order of protection.  

Order of Protection can be obtained on an emergency basis, and without notice to the "abuser."   After appearing before a Judge and presenting evidence (testimony, pictures, telephone records, witness reports), Judge may issue an Order of Protection for MAXIMUM 21 days.  Within 21 days, the Judge will then conduct a full hearing involving both the alleged victim and alleged abuser.  Both parties will then have time to present their version of the story. 

After this hearing, Judge has authority enter an Order of Protection for maximum 2 years. 

Order of Protection proceedings incident to divorce cases are commonly civil proceedings, and are not criminal in nature.  However, if there is a violation to an existing Order of Protection - there can be a criminal charge. 

Does the immigration status affect an order of protection?

Generally speaking, person's immigration status is not relevant as the court is predominantly concerned with protecting victims of domestic violence.  Immigration matters, as a general rule are governed by federal court, and domestic violence court is a state judiciary.  There are situations where immigration status may be important.  For an example, if there allegations that the "abuser" is seeking to remove the minor child from the United States, the immigration status may questioned by the judge.  

It is important to note that persons who have pending petitions for a green card or U.S. Citizenship, U.S. Department of Homeland Security may inquire if the applicant ever had a domestic incident and whether the applicant was found to be an abuser in an order of protection case.   Accordingly, a "conviction' in order of protection hearing may have a negative effect on the application for permanent residence, visa, or citizenship.

Gregory Gancarczyk is an Illinois licensed attorney concentrating in all aspects of Family Law.
Mr. Gancarczyk, is a principal in his firm, Gan Law Group (  IFor the preceding four years, he was named by Super Lawyers Magazine as a Rising Star in the area of Family Law, a designation reserved for the top 2.5% of all Illinois attorneys under 40.
Mr. Gancarczyk can be reached at

Thursday, August 11, 2016


For many years, Illinois has followed "percentage of payor's net income" model in calculating child support.  This model primarily focused on the non-custodial parent's income, and oftentimes, did not take into consideration the custodial parent's income in determining the proper amount of child support.  As an example, Illinois courts used a statutory guideline of calculating 20% of the payor's net take-home pay, as and for child support for one child of the parties.  

This will no longer be the case.

After several months of rumors and gossip floating within the family law community of Illinois, an "income share" model for calculation of child support will be made into law effective July 1, 2017, assuming Governor Rauner signs the passed measure into law.  Most pundits expect this to happen with little resistance from the Governor's office.

This new law will follow 39 other states in utilizing the income share model, which shall take into into account both parents' respective income, expenses, earning capacity, and parenting time.
Although this new law will be effective July 1, 2017, it does not mean that this is an invitation for past litigants to modify their existing orders. A standard of "substantial change of circumstances" will remain the guiding principle for whether an existing child support order can be modified.

Wednesday, April 27, 2016

Changes in Illinois Law concerning property purchased before the marriage

Effective January 1, 2016, Illinois Marriage and Dissolution of Marriage Act has undergone many significant changes.  While statutes concerning parenting issues have received much attention in the press, laws on property distribution have also been revamped.

Most notably, the theory of "property acquired in contemplation of marriage" has been wholly eliminated from Section 503 of the Illinois Marriage and Dissolution of Marriage Act.
Previously, there have been many cases on this issue, all of which now have been nullified by the amendment.

In fact, Section 503(a) now explicitly states as follows, "Property acquired prior to a marriage that would otherwise be non-marital shall not be deemed to be marital property solely because the property was acquired in contemplation of marriage. "

Effectively, the general rule is that if you and your spouse purchased a home after your engagement, but prior to the marriage (and the title to this home was and remains in your spouse's name alone), this property will not be deemed marital.

Thursday, April 21, 2016

Pet "custody" and visitation

In a recent case of In re Marriage of Enders, an Illinois Appellate Court for the first time addressed "custody" of a pet.  On appeal, the husband argued that divorce court committed an error in denying him visitation with the parties' two dogs.

The Appellate Court relied on a New York case and statutory definition of a dog owner under the Illinois Animal Control Act.   Because the dogs were left in the care of the wife, under the statutory definition, the wife was the legal owner of the two dogs.  Thus, she was properly granted custody of the two dogs.

Many pet owners will certainly be disappointed with this decision because the court did not award visitation to husband under a somewhat flawed logic.  The Appellate court reasoned that awarding pet visitation would "serve as an invitation for endless post-decree litigation."

Interestingly enough, the court followed New York and declined to use the "best interest" standard, as dogs do not rise to the same importance as children.

As it stands, if the issue of dog custody is not resolved prior to trial, the court will award only "custody" to one party.